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2013 DIGILAW 973 (MP)

Shadab v. State of M. P.

2013-08-19

P.K.Jaiswal, S.R.Waghmare

body2013
ORDER Smt. Waghmare, J. -- 1. By this writ petition under Articles 226 and 227 of the Constitution of India, petitioner Shadab has challenged the order dated 31.1.2013 passed by the State Government under section 3(2) of the National Security Act, 1980 detaining the petitioner for a period of one year. 2. Brief facts in a nutshell are that the petitioner is a 24 years old youth and respondent No.3 Superintendent of Police, District Collectorate, Indore has stated that there are several cases registered against the present petitioner especially in the Police Station at Pandharinath. Whereas in fact the petitioner has been acquitted from three of the major offences registered against him and in the remaining two cases the offence has been registered on the basis of false complaint filed by the paternal aunt of the petitioner Parveen Beg w/o Sarvar Beg. There are property dispute between the parties and the petitioner has been falsely implicated in the matter. 3. Learned counsel for the accused petitioner has contended that the offence pertaining to year 1995 registered at Case No.179/99 the petitioner had already been acquitted from the offence. So also the petitioner has been acquitted from the offence registered at Criminal Case No.1120/99 and similarly it was the fate of the Sessions Trial No.279/99. The family is the owner of several properties situate at Bombay Bazar and portion of it has been left to him by the great grand father of the accused. Counsel submitted that Athar Beg, the husband of Parveen Beg is himself a notorious and listed criminal of Police Station Pandharinath. Counsel submitted that the newspaper has categorically mentioned that the petitioner was not present on the spot when the shooting incident occurred. Counsel prayed that the detention order passed by the Collector is, therefore, bad in law. The State Advisory Board has considered the fact at the time of granting consent proper opportunity of hearing has not been granted to the petitioner to make proper representation against the detention order. The respondent/State has failed to consider the material on record, counsel stressing the fact under section 3(2) of the National Security Act, the detaining authority has not considered all the facts and there wasn’t sufficient material on record to indicate that the petitioner was likely to indulge any anti-social activity and, therefore, such a detention order be set aside. The respondent/State has failed to consider the material on record, counsel stressing the fact under section 3(2) of the National Security Act, the detaining authority has not considered all the facts and there wasn’t sufficient material on record to indicate that the petitioner was likely to indulge any anti-social activity and, therefore, such a detention order be set aside. To bolster his submissions, counsel relied on several authorities such as : “(1) Victoria Fernades v. Lalmal Sawma and others [ AIR 1992 SC 687 ], whereby the apex Court has held that solitary incident of assault on a journalist coupled with two acts of threats on journalists do not constitute acts relating to public order. (2) Kamla Pandey v. State of M.P. and another [ 1996 MPLJ 898 ], it has held that the Magistrate in his order did not indicate that he neither aware of fact of detenu being in custody nor was it recorded that his activities were prejudicial to maintenance of public order. Order of detention passed against detenu being without any application of mind was declared to be invalid. (3) In Rekha v. State of Tamil Nadu and another [ (2011)5 SCC 244 ]. While considering the legality of the detention order the Court had held that the detention order is passed on the basis of subjective satisfaction of detaining authority and without trial, without lawyer’s assistance and without being produced before Magistrate within 24 hours and it is repugnant to democratic ideas and rule of law and, therefore, law of preventive detention should be strictly construed and confined to narrow limits of rare and exceptional cases, and meticulous compliance with procedural safeguards should be made mandatory and the apex Court had held that when details of “small cases” were not provided then it could not be held there was sufficient material to sustain the detention order. (4) Shri Sayeed alias Aslam v. State of M.P. [ 2003(4) MPHT 312 (DB)], counsel submitted that this Court had held that while passing the detention ordfer, the District Magistrate has not applied his mind effectively for coming to the subjective satisfaction and the order of detention was passed mechanically and is does not disclose about disturbance of public order which required the detaining authority to detain the detenue under section 3(2) of the Act. Subjective satisfaction cannot be lightly recorded by reproducing alternative clause of statute and hence, order passed by the District Magistrate and confirmed by the State Government is quashed. (5) Tabib Ahmad v. State of M.P. and others, passed in Writ Petition No.1507/2011, whereby the Division Bench of this Court has held that when a person is sought to be detained by way of prevention, which is a detention without trial, the detaining authority has to be more circumspect and careful in verifying the facts on the basis of which such detention without trial is ordered. (6) Rakesh Gautam v. State of M.P. and others, passed in Writ Petition No.5544/2012, whereby the Division Bench of this Court had held that since the representation of the detenu was pending before the detaining authority it was bound to consider the same and only then the order of detention could be confirmed.” In view of the above, learned counsel for the petitioner prayed that the present petition be allowed since the petitioner had already undergone seven months of the custodial sentence and the he is a young man of 24 years of age and is likely to deteriorate in custody. 4. Ms. Mini Ravindran, learned Deputy Government Advocate for the respondents/State, has vehemently opposed the submissions of the learned counsel for the petitioner and submitted that all the procedures as prescribed under the National Security Act, 1980 have been followed and due proceedings under section 3(2) of the Act of 1980 properly taken. She submitted that the petitioner was absconding since the order of detention passed by the District Magistrate on 12.12.2011. Counsel urged that on 2.12.2011 the accused Shadab Beg had attacked son of complainant Parveen Beg w/o Sarvar Beg and fired a gun shot; as a result of which the general public and residents of Bombay Bazar area along with the shop keepers were put into fear about their security. The shops were closed and women and children did not come out in the street. The offence was registered at Police Station Pandharinath at Crime No.259/11 under sections 294, 307, 34 of the IPC. The news was published in several newspapers and there was a feeling of terror amongst the neighbourhood. The shops were closed and women and children did not come out in the street. The offence was registered at Police Station Pandharinath at Crime No.259/11 under sections 294, 307, 34 of the IPC. The news was published in several newspapers and there was a feeling of terror amongst the neighbourhood. Besides there are several other offences registered against the petitioner and the detenu consistently engaged in criminal activities besides he also indulged in anti-social and communal activities and hence, detention order under section 3(2) of the National Security Act has been passed against the petitioner. On 8.10.1995 petitioner Shabad had entered into the house of one Ashok Kumar Jain in Ushaganj and issued life threats and crime was registered against the petitioner at Crime No.697/95 at Police Station Sanyogitaganj for offence under sections 452, 427, 323, 506, 147, 148, 149 of the IPC and under section 25 of the Arms Act. Similarly on 5.11.1996 Crime No.209/96 was registered against the petitioner at Police Station Pandharinath for offence under sections 451, 323, 427, 34 of the IPC. Thereafter on 13.12.1996 the petitioner along with his uncle Jaffar Beg attacked the house of complainant Nisar Khan and caused maar-peet and crime was registered at Case No.251/1996 for offence under sections 343, 294, 323, 506, 364A, 34 of the IPC. On 17.9.2008 again at Police Station Pandharinath Crime No.253/08 was registered against the petitioner for offence under sections 294, 506, 336, 34 of the IPC. On 2.12.2011 again there was property dispute between the petitioner and complainant Parveen Beg and Crime No.259/11 was registered against the petitioner for offence under sections 294, 307, 34 of the IPC. It was alleged that the present petitioner fired a gun shot at son of the complainant. Besides counsel for the respondent countered that even the petitioner has been acquitted from some of the offences and the order was passed by the District Magistrate to his subjective satisfaction which has been properly recorded and the State Government thereafter granted sanction on 30.12.2011 on the basis of the report of the Advisory Board dated 8.1.2013 and when the Advisory Board constituted under section 3(2) of the National Security Act exercised its power only then the State Government has rightly granted sanction for passing of the impugned order. Counsel submitted that the petitioner had a history of several crimes such as extortion, assault running a gambling a den and offence under section 307 of the IPC as already stated above. He was a terror in the Bombay Bazar area. Counsel submitted that the petitioner does not deserve any sympathy and prayed for dismissal of the petition. 5. On considering the above submissions, we find that the important fact that cannot be lost sight of is that the due procedure has been followed at the time of passing the detention order. The petitioner was absconding for more than a year and was arrested on 4.12.2012. The detention order was passed after confirmation from the Advisory Board and we find that no lapses have been occurred in the procedure prescribed. The Advisory Board considered all the provisions and it cannot be said that there was no application of mind since the order is based on valid and proper reasoning. The history of the petitioner is also not very conducive to sympathy except the fact the applicant-petitioner has been acquitted from the three of the offences out of the five offences recorded against him. However, for the offence under section 307 of the IPC the petitioner is still under trial. Under these circumstances, we do not find any infirmity in the order passed by the State Government and the respondents. However, we find that the petitioner has a right to make a representation before the Central Government under Article 22(5) of the Constitution of India and if the petitioner shall make such a representation within a period of fifteen days from the date of receipt of this order it shall be considered by the concerned competent authority within a period of one month therefrom in accordance with the provisions of law. We however, do not find any ground for setting aside the detention order passed against the petitioner by the respondents/State. 6. With the aforesaid, this writ petition is disposed of. .............